Article by Jack L. Allbritton
After thirty-three years of silence on the issue of “who is a Jones Act seaman,” the Supreme Court agreed to hear McDermott International, Inc. v. Wilander. Wilander presented the Court with an opportunity to clarify the definition of a “seaman” entitled to the benefits of the Jones Act and to end the confusing and sometimes agonizing gymnastics characterizing the lower courts' attempts to decide the issue. However, the Wilander Court chose only to resolve a piece of the puzzle: whether Jones Act seaman status required that the seaman's duties be “in aid of navigation” of a vessel. Acknowledging that this was a narrow question, the Supreme Court held only that “the time has come to jettison the aid in navigation language” from the seaman status test and that one who seeks seaman status under the Jones Act should not be barred simply because he did not perform “transportation-related functions” on board the vessel.
The Jones Act provides a remedy to seamen for injuries incurred in the course of their employment aboard a vessel due to the negligence of their employers, a remedy that had previously been denied by the courts. The remedy is available only against a seaman's employer. Jones Act seamen enjoy the advantage of the “featherweight” burden of proving slight negligence that the courts have engrafted on Jones Act causes of action. Seaman status also triggers the availability of the general maritime law remedies of unseaworthiness and maintenance and cure. Those maritime workers that do not qualify as seamen or members of the crew of a vessel are typically relegated to a workers' compensation remedy against their employer under the Longshore and Harbor Workers' Compensation Act (LHWCA) and a negligence cause of action against vessels. However, the LHWCA specifically denies covered employees a remedy of unseaworthiness. It is no wonder, then, that maritime workers have aggressively sought to achieve seaman status whenever possible, which has contributed to the proliferation of seaman status litigation.
Because Congress did not define “seaman” in the Jones Act, the courts have developed a definition through case precedent. With the technological advancements in waterborne transportation and commerce since the enactment of the Jones Act, the concept of seaman status has expanded considerably. The courts have recognized that special purpose structures, such as offshore drilling rigs and specially equipped construction barges, can be vessels and their workers seamen for purposes of the Jones Act and general maritime law. These developments opened the door for various shore-based maritime workers to seek Jones Act seaman status when they sometimes worked on floating structures and for workers assigned to floating or floatable structures even though their duties had nothing to do with the navigation or transportation function of the vessel. Although the terms “seaman” and “vessel” may have had generally accepted meanings when the Jones Act was enacted in 1920, these definitions do not suffice in the 1990s.
In the search for a bright line test for Jones Act seaman status, the courts have wrestled with the question of whether a worker's duties must contribute to the navigation or transportation function of a vessel in order for the worker to qualify as a seaman. In Offshore Co. v. Robison the Fifth Circuit said “no.” In Johnson v. John F. Beasley Construction Co. the Seventh Circuit said “yes.” Wilander resolved this conflict by rejecting Johnson's “aid in navigation” requirement in favor of the Robison court's requirement that a seaman's work should “‘contribute to the function of the vessel or to the accomplishment of its mission.”’ Unfortunately, however, Wilander stopped short of a complete definition of seaman status.
Robison is generally regarded as the seminal seaman status case decided in the last thirty-five years. In Robison, the Fifth Circuit stated that
there is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties that he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.
Wilander expressly validated only the second prong of the Robison test. In rejecting the “aid in navigation” requirement for a seaman's Jones Act status, the Supreme Court concluded that, because Congress did not define the term “seaman” in the Jones Act, Congress intended the term to have its established meaning. The Court then reviewed the available pre-Jones Act authorities and concluded that they did not require that a seaman's work be “in aid of navigation.” Rather, the Court reaffirmed the view that the terms “seaman,” as used in the Jones Act, and “master or member of a crew,” as used in the LHWCA, were equivalent, and reasoned that these terms should be defined solely in consideration of the “employee's connection to a vessel in navigation,” and not in terms of the “employee's particular job.” According to Wilander, the key to seaman status is an “employment-related connection to a vessel in navigation,” a necessary element of which is that the employee must “perform the work of a vessel.” The Wilander Court, however, did not attempt to define the elements or nature of the “employment-related connection to a vessel in navigation” requirement. Thus, in Wilander, the Supreme Court's first “status” case in thirty-three years, the Supreme Court provided only limited guidance to the lower courts.
Soon after Wilander, the Supreme Court decided Southwest Marine, Inc. v. Gizoni. In Gizoni, the Court held that a maritime worker may not be denied seaman status under the Jones Act simply because his occupation is one of those enumerated in the mutually exclusive LHWCA. By doing so, the Court resolved another conflict among the circuits, this time rejecting the Fifth Circuit's decision in Pizzitolo v. Electro-Coal Transfer Corp. Pizzitolo held that a worker whose occupation was clearly covered by the LHWCA could not, as a matter of law, be considered a member of the crew of a vessel and, therefore, was not a Jones Act seaman, precluding in the first instance the usual Jones Act analysis. Gizoni, like Wilander, however, did not purport to define further Jones Act seaman status. Once again, the Court delegated “to the lower courts the task of making some sense of the confusion left in our wake.”
In the Wilander Court's limited wake, three areas of seaman status law remain unsettled and continue to generate confusion and conflicting decisions in the lower courts. It is unclear what effect Wilander will have on the issues it failed to resolve. First, should seaman status extend to traditional seamen, such as pilots and divers, who spend most of their time working on numerous vessels, but have no permanent assignment to a vessel? Second, does Robison's “substantial work” alternative to “permanent assignment” survive Wilander's “employment-related connection to a vessel” requirement? Third, what is the test for determining whether a floatable structure is a Jones Act vessel?
About the Author
Jack L. Allbritton. Partner, Fullbright & Jaworski, Houston, Texas; Member, Texas State Bar Association. J.D., University of Texas, 1966.
Citation
68 Tul. L. Rev. 373 (1994)